in Section 443.1,01 (1), Fl-orida Statutes.

Transcription

1 This cause comes before the Commission for disposition of the pmnlor.ror's AnneA l nrrrsrrant to Section (4) (c), Florida StatuteS, of a LLIrrvl ur referee, s decision which held the claimant not disqualified from receipt of benefits. On appeat to the Commission, evidence was submitted which hacl not been nrprriorrqlrz nresented to the referee. The parties were advised prior to the 1-,^=rinn rlrcr rhe haari ncr ures their nnlrz nnnortrrnitrr to nreggnl v, all Of theif lledr Irrv Lrla L LrrE rlqq+ +Jlv wep Lllurr vrrrj vyirv! ev evidence in support of their case. Florida Administrative Code RuIe 738*?t 006 nrorriries that the Commission can consider newly discovered evidence only upon a showing that it is material to the outcome of the case and coul-d not have been discovered prior to the hearing by an exercise of due diligence. The Commission did not consider the additional evidence because it does not meet the requirements of the rul-e ' Pursuant to the appeal filed in this case, the Reemployment Assistance Appeals Commission has conducted a complete review of the evidentiary hearing record and decision of the appeals referee. See (4) (c)' Fla. Stat' Rrr 4 J * 9 ri v aw- ' the commissiont s review is limited to those matters that were nresenfed to the referee and are contained in the official record. The issue before the Commission is whether the claimant was discharged hrr the emnl or.,orl for misconduct connected with work as provided Nl in Section 443.1,01 (1), Fl-orida Statutes. The referee's findinqs of fact recile as foll-ows: The claimant worked for the employer, a cleaning service, as a full-time crew lead, from May 1, 2010, through May 22, 2014, The cl-aimant/ s job duties incl-uded qrrnerrri rui/lr vrrfrry s inrr wrrrkers YYv!rrv+ nprformi tv!rrt+rry nn nn-si te re si clentiaj cleaning. On May 22, 2014, a ring went missing from a customer's home after it was cl-eaned by a crew lead hy the claimant. Upon being contacted by the customer, the owner of the company asked her employees about the mieeinrr rino- The claimant told the owner that she did not take the ring. The claimant was subsequently Irr

2 Page No. 2 arrested in connection with the theft. During the arrest, the claimant maintained she did not take the ring. The cfaimant was terminated on May 22, 201,4. Based upon the above findings, the referee held the cfaimant was discharged for reasons other than misconduct connected with work. Upon review of the record and the arguments on appeal, the Commission concl-udes +1ra -afaraara -lecision LIIE IE!EIEg D I fails to address Competent, material, CirCumstantial evidence and, therefore, is not in accord with the Jaw; accordingly, it is reversed. Section 443,036(30), Florida Statutes (2013)/ states that misconduct connected with work, "irrespective of whether the misconduct occurs at the urnrkn'l n.-p.^'r 4rrri nn r^rorki nn lnrrrc i nnl rrriac Yvv! ^FaquL vr wv+ r!+++y but is not Iimited to, the t +rrv+uuvv / following, which may not be construed in pari materia with each other": (a) Conduct demonstrating a conscious disregard of an employer's interests and found to be a deliberate violation or disregard of the reasonabje standards of behavior which the employer expecls of his or her employee. Such conduct may include, but is not limited to, wifffuf damage to an employer's property that resujts in damage of more than $50; or theft of employer property or property of a customer or invitee of the employer. (b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial- disregard of the employer's interests or of the employee's duties and obligations to his or her employer. (c) Chronic absenteeism or tardiness in del-iberate viofation of a known policy of the employer or one Qr more unapproved absences foll-owing a written reprimand or warnino relatinq to more than one unapproved absence. (d) A willful and deliberate violation of a standard or regulation of this state by an employee of an employer l"icensed or certified by this state, which violation woufd cause the employer to be sanctioned or have its license or certification suspended bv this state. (e)1. A viol-ation of an employer's rufe, unless the claimant can demonstrate that: a. He or she did not know, and could not rea sonattl rz knour - nf the rtt I o!vssv++svrl rllrvvv, 5 radllrramonre' b. The rule is not fawfuj or noc reasonably related to the job environment rnd norfn rmfn-a. AF c. The rul-e is not f airlv or consistentl-v enforced. 2. Such conduct mav include, but is not

3 Pr na NTn l-imited to, committing crirninal- assault or battery on another empl-oyee, or on a cuslomer or invitee of the employer; or co$unitting abuse or neglect of a patient, resident, disabled person, elderly person' or child in her or his professional care. rn holding the claimant not disqualified from receipt of benefits, the referee concluded the employer presented only hearsay evidence to establish the cfaimant had stolen from a customer and, therefore, failed to meet its Frttrdon nf nrnrri ^^ mi qnnndrrni- Tn reachi no this COnCIUSiOn, howevgf, the rcforaa i rrnnrcrl Unrebgtted COmpetent, matefial, CirCUm$tantial- evidence that was sufficient to establish a prima facie case of misconduct. Direct evidence has no greater "automatic," or "inherent" vafue than circumstantial evidence. Any element of proof in a reemployment assislance -' I-^ ha-lf- LdJE lltcty IJE lttdue, crr vr IEUULLEVt rehrr1_1_pd- Vy hv EJLIIEI eifher uir dir:ect or circumstantial evidence. "DirecL evidence" is provided by witnesses who testify to their direct observation of a fact. Mosley v. State, 46 So, 3d 510/ 526 n.14 (FIa. 2009). For example, a witness who testifies that he saw another employee take money out of a cash register has provided direct evidence to that fact. Circumstantiaf evidence, by contrast, is evidence of facts from which another materiaf fact may be inferred. Id.; ry e]qq Lake County Sheriff's Denartmenf \/- tinempf oyment Appeqlq Corflnission, 4-lB $o. 2d BB0, BB1 (FIa. Sth DCA 1985). For example, a store manager testifies that a store's safe contained $1000 when he counted it after closing one night, but contained nnlrr vrr+ y 45oo u,hon he counted it before opening the next morning. He further Yvvv teslifies that he reviewed the store's security access log and found that an assistant manager was the onty individual in the store during the interim. These facts are sufficient to prove by circumstantial inference that the rqsi s'l- anf mfinefitrr sto.l e f.he mfinfv_ end are crrf f i ni anl_ r^ nfovg that fact Ovgf vs++l rlrsrrst,sr Lrrv tlrvrrvj t Hrru qrl e- the assistant manager's denial, if the weight of the evidence favors that inference. There is no sound logical basis for automaticaffy preferring or er:r:enf i no rji rect evidence over circumstantial evidence. Indeed, such f lawed reasoning can operate to deprive parties of their right to a fair hearing. In concjuding the employer did not present sufficient competent evidence to establish that the claimant was discharged for misconduct, the referee discredited hearsay testimony presenled by the employer's wilness without addressing any of the employer's competent circumstantial evidence. Tho emnl Orrer/ s r^ri f nfqc nrn\ri rlerl hearsav f esti*^*-- L--^i ^n r.rhrt- i.'ae ronrralgql - wlllledj Flrvvau* *** -Irllurryr udjylj L/ll wllal wdj re[/u tn her l-rrz t_ he nnn-f esf i fvincr -^r 'i ^^ ^r 'r ^^- LV rrer uy LrlE llvrl LEJLrrJfrlY that the cl-aimant admitted to IJUTJLE V!llUE!, the police officer her invojvement in the theft of a cfient's anniversary rin6-1. The emnloverrs witness.lid nnt narqnnallrr! f l+y. urrr}/rvj v! hear the C]-aimant'S admission to the police officer, so the referee correctly concl-uded this testimony was hearsay. However, the record reflects that after being informed of the cl-aimant's alleged admission and resujting arrest, the amnl nrrar'q r.ri 1-neSS v+rly+v went outside to notif y the c]aimant Of her discharge. I vr employer/ s witness testified she observed the claimant in handcuffs in the back of the police car. She further testified that when the claimant stated to her that she had not been involved in the theft of the client's ring, she heard the police officer say to the claimant, "You're in the back of a police -r r \//\rr, \rf i rr 5l gggn v * r / y " * J * \ aif ested, you/ Ve admi tted it to me, and yout f e stif f.t The

4 Page No. 4 going to lie to her?" The employer's witness provided competent te$tlmony, based on her personal observation, that the claimant started crying and stated she had a "piil problem" but that she had never stol-en from fhe emnlover- The pmnlr.rrzfr's eompglent evidence reflects the claimant never expressly refuted the police officer's statement "you admitted it to me, " and that she amended her denial to say she had never stolen from the employer (as nnnnqed rn her earl-ier statement Eo the employer's witness that she had not stolen from the client). The employer's competent circumstantial evidence is sufficient to support a reasonable inference that the claimant was culpable and that she admitted her culpability to the police officer. Accordingtly, the employer established a prima facie case of misconduct. Once the employer establ-ishes prima facie misconduct, the burden shifts to the employee to establish the propriety of that conduct. Alterman Transport Lines, Inc. v. Unemplovment Appeals Commission, 410 So. 2d 568, 569 (F]a. 1st DCA 1982). The cl-aimant did not appear or present any evidence at the hearing. Therefore, the claimant has failed to meet her burden of proof. Ri nr-e the emnl crtrar/ q nri ma f ^Cie L++v v.rrlr+v j vr evidence Of misconduct is Unref Uted, the claimant is disqualified from receipt of benefits. The decision of the appeals referee is reversed. The claimant is disqualified from receipt of benefits for the week ending l{ay 24, 2014, the 'l 5 qrrr-r'cerl u svuvus+rry i nr-r rn7ssl4s, and until- she becomes reemployed and earns $2, 839. As a result of this decision of the Commission, benefits received by the claimant for which the claimant is not entitled may be considered an overpayment crrl.rianl_ f n rf--\rfr\/ r^ri th the qner-i f i r-.rmorrnt nf f hc nrrprn,atlment to he ruujlul LU rlvvverj, wilif Llrv r}jlvf!rl srrlvs vv!irriarrlarl calcufated by the Department and set forth in a separate overpayment determination - It is so ordered. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION Frank E. Brown, Chalrman Thomas D. Epsky, Member,Tncanh n Einnaflin Moml-rpr ++v+!.vv4 t Thls is to certify that on 1.2/r/201.4 the above Order was filed in the office of the Cferk of the Reemployment Assistance Appeals ^^**.: ^ ^ l ^- -*.1,a rnnrr me i I pd l-uitultj- J J rull T diiu d UV}/y lttqf aeu to the Jast known address of each 'infaraefarl n:rf - *- *Y' By: Kimberley Pena l-]enrrf rr [-l prk

5 Employer DECI$ION OF APPEALS REFEREE lmpoftant appeal rights are explained at the end of this decision. Derechos de apelaci6n importanteson explicados al final de esta decision. Yo eksplike k0k dwa dapalenpdtan lan fen desiryon sa a. lssues Involved: SEPARATION: Whetherthe claimant was discharged for misconduct connected with work or voluntarily left work without good cause as defined in the statute, pursuant to Sections (1), (9),(10),(11); aa3.036(30), Florida Statutes; Rule , Florida Administrative Code. Findings of Fact: The claimant worked for the employer, a cleaning service, as a full-time crew lead, from May L, 2010, through May 22,20t4.Theclaimant'sjobdutiesincludedsupervisingworkersperformingon.siteresldentlal cleaning. OnMay22,2OL4,aringwent missing from a customer/s home after it was cleaned by a crew lead by the claimant, Upon being contacted by the customer, the owner of the company asked her employees about the missing ring. The claimant told the owner that she did not take the ring. The

6 claimant was subsequently arrested in connection with the theft. During the arrest, the claimant maintalned she did not take the ring. The claimant was terminated on May 22, Conclusions of Lawr As of May 17, 2013, the Reemployment Assistance Law of Florlda deflnes misconduct connected with work as, but is not limited to, the following which may not be construed in pari materia with each other: a. Conduct demonshating conscious disregard of an employerrs interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee. Such conduct may include, but is not limited to, willful damage to an employer's property that results in damage of more than $50; theft of employer propefiy or properly of a customer or invitee of the employer. b. Carelessness or negligence to a degree or recrurence that manifests culpability, or wrongful intent, or shows an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his or her employer. c. Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more rurapproved absences following a written repfimand or warning relating to more than one unapproved absence. d. A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state. e. l. A violation of an employer's rule, unless the claimant can demonshate that: a, He or she did not know, and could not reasonably know of the rule's requirements; b The rule is not lawful or not reasonably related to the job environment and performance; c. The rule is not fairly or consistently enforced. 2, Such conduct may include, but is not limited to, cammitting criminal assault or battery on another employee, or on a customer or invitee of the employer; or committing abuse or neglect of a patient, resident, disabled person, elderly person, or child in her or his orofessional care. The record reflects the claimant was discharged. The burden of provlng misconduct on the employer. Lewisr- tlnemplovment Appeals Commission, 498 So.2d 608 (Fla. 5th DCA 1986). The proof must be by a preponderance of competent substantial evidence, De

7 Groot v. Sheffield, 95 5o.2d 91? (Fla. 1957); TallahasseeHousins Authoritv v. Uliemplovment Asneals Corpfiissian 483 So.2d 413 (Fla. L986), The record reflects the employer presented solely hearsay testimony to suggesthe claimant stole from the customer. The record further reflects the claimant denied the theft of the ring when questioned by the supervisor. Ultimately, while the suspicion of theft alone may have provided the employer with adequate cause to terminate the claimant, the employer has not established by a preponderance of competent substantial evidence that the claimanfs actions constituted misconduct. Accordingly, the claimant remains qualified for the recelpt of benefits. Decislonr AFFIRMED. The claimant is not disqualified for the receipt of benefits. lf this decision disqualifies and/or holds the claimant ineligible for benefits already received, the claimant will be required to repay those benefits. The specific amount of any overpayment will be calculated by the department and set forth in a separate overpayment determination, unless specified in this decision. However, the time to request roview of this decision is as shown above and is not stopped, delayed or extended by any other determination. decision or order. LACHERYL SCURRY, Deputy Cterk IMPORTANT - APPEAL RIGHT$: This decision will become final unless a written request for review or reopening is filed within 20 calendar days after the distribution/mailed date shown. lf the 20th day is a Saturday, Sunday or holiday defined in F.A.C , filing rnay be made on the next day that is not a Saturday, Sunday or holiday. lf this decision disqualifies and/or holds the claimant ineligible for benefits already received, the claimant will be required to repay those benefits. The specific amount of any overpaymont will be calculated by the Department and set forth in a separate ovsrpayment determination. However, the time to request review of this decision as shown above and is not stopped, delayed or extended by any other determination, decision or order. A party who did not attond the hearing for good cause may reguest reopening, including the reason for not attending, at connect.mvflorida.com or by writing to the addre$s at the top of this decision. The date of the confirmation page will be the filing date of a request for reopening on the Department's Web Site. A party who attended the hearing and received an adverse decision may file a request for review to the Reemployment Assistance Appeals Commission, Suite 101 Rhyno Building, 2740 Centerview Drive, Tallahassee, Florida ; (Fax: ); lf mailed, the postmark date will be the filing date. lf faxed, handdelivered, delivered by courier service other than the United States Postal Service, or submitted via the Intemet, the date of receipt will be the filing date. To avoid delay, include the docket number and claimant'social security number. A party requesting review should specify any and all allegations of error with respect to the referee's decision, and provide factual and/or legal support for these challenges. Allegations of enor not specifically set forth in the request for review may be considered waived.

8 IMPORTANTE - DERECHOS DE APELACEN: Esta decision pasard a ser final a meno$ que una solicitud por escrito para revisi6n o reapertura se registre dentro de 20 dlas de calendario despu6s de la distribucidn/fecha de envio marcada en que la decisidn fue remitida por correo. Si el vigdsimo (20) dia es un s6bado, un domingo un feriado definidos en F.A.C , el registro de la solicitud se puede realizar en el dia siguiente que no sea un sdbado, un domingo un feriado. Si esta decisi6n descalifica y/o declar al reclamante como inelegible para recibir beneficios que ya fueron recibidos por el reclamante, se le requerird al reclamante rembolsar esos beneficios. La cantidad especffica de cualquier sobrepago [pago excesivo de beneficios] serd calculada por la Agencia y establecidq en una determinaci6n pago excesivo de beneficios que sera emitida por separado. Sin embargo, el limite de tiempo para solicitar la revisidn de esta decisi6n es como se establece anteriormente y dicho limite no es detenido, demorado extendido por ninguna otra determinaci6n, decisi6n u orden. Una parte que no asisti6 a la audiencia por una bucna causa pucdc solicitar una reapertura, incluyendo la raz6n por no haber comparecido en la audiencia, en connect.mflorida.com o escribiendo a la direcci6n en la parte sup rior de esta decisi6n. La fecha de la pfigina de confirmacidn ser6 la fecha de presentacidn de una solicitud de reapertura en la pfgina de Internet del Depailamento. Una parto que asisti6 a la audiencia y recibio una decisi6n adversa puede registrar una solicitude revisidn con la Comisidn de Apelaciones de Servicios de Reempleo; Reemployment As$istance Appeals Commission, Suite 101 Rhyne Building,2740 Centerview Drive, Tallahassee, Florida ; (Fax: ); Si la solicitud es enviada por coffeo, la fecha del sello de la oficina da coneos serd la fecha de registro de la solicitud. Si es enviada por telefax, entregada mano, entregada por servicio de monsajeria, con la excepci6n del Servicio Postal de Estados Unidos, o realizada via el lntemet, la fecha en la que se recibe la solicitud sera la fecha de registro. Para evitar demora, incluya el n0mero de expediente [dockef numbei y el n0mero de seguro social del reclamante. Una parte que solicita una revisidn debe especificar cualquiera y todos los alegatos de error con respecto a la decision del arbitro, y proporcionar fundamentos reales y/o legales para substanciar 6stos desafios. Los alegatos de error que no se establezcan con especificidad en la solicitud de revisi6n pueden considerarse como renunciados. ENPOTAN - DWA DAPEL: Desizyon sa a ap definitif sof si ou depoze yon ap6l nan yon dela 20 jou apre dat distribisyon/postaj. Si 20yAm jou a se yon samdi, yon dimanch oswa yon jou konje, jan sa defini lan F.A.C , depo an kapab fdt jou aprd a, si se pa yon samdi, yon dimanch oswa yon jou konje. Si desizyon an diskalifyepi/oswa deklare moun k ap fd demann lan pa kalifye pou alokasyon li resevwa deja, moun k ap fd demann lan ap gen pou li remat lajan li te resevwa. Se Ajans lan k ap kalkile montan nenpdt ki peman anplis epi y ap detdmine sa lan yon desizyon separe. Sepandan, deld pou mande revizyon desizyon sa a se dela yo bay anwo a; Okenn ldt detaminasyon, desizyon oswa lod pa ka rete, retade oubyen pwolonje dat sa a. Yon pati ki te gen yon rezon valab pou li pat asiste $cyans lan gen dwa mande pou yo ouvri ka a ankd; fdk yo bay rezon yo pat ka vini an epi fa demann nan eou sitwib $a a, cqrylecl.nn\dlorida.gqm oswa alekri nan adras ki mansyone okomansman desizyon sa a. Dat cofimasyon page $a pral jou ou ranpli deman pou reouvewti dan web sit depatman.

9 Yon pati ki te asiste odyans la epi li resevwa yon desizyo negatif kapab soumdt yon demann pou revizyon retounen travay Asistans Komisyon Apdl la, Suite 101 Rhyne Building, 2740 Centerview Drive, Tallahassee, Florida ; (Faks: ); Si poste a, dat tenm ap dat li ranpli aplikasyon. Sifakse, men yo-a delivre, lage pa sdvis mesaje ldt pase Htazini Sdvis nan Etazini Nimewo, oena $oumdt sou EntAnAt la, dat yo te resevwap dat li ranpli aplikasyon. Pou evite reta, mete nimewo rejis la ak nimewo sosyaldemandd a sekirite. Yon pati pou mande revizyon ta dwe presize nenpot ak tout akizasyonan erd ki gen rapd ak desizyon abit la, yo epi bay sipd reyal ak / oswa legal pou defi sa yo. Alegasyon sou erd pa espesyalman tabli nan demann nan pou revizyon yo kapab konsidere yo egzante. An equal opportunity employer/program. Auxiliary aids and services are available upon requesto individuals with disabilities. All voice telephone numbers on this documont may be reached by persons using TTY/TDD equipment via the Florida Relay Service at 711.